People v. Reese

• Decision Date: 05 January 1932
• Citation: 258 N.Y. 89,179 N.E. 305
• Parties: PEOPLE v. REESE.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 89

179 N.E. 305

PEOPLE

v.REESE.

Court of Appeals of New York.

Jan. 5, 1932.

Howard B. Reese was convicted of attempted forgery in the third degree, and sentenced to life imprisonment as a fourth offender. From the judgment of the Appellate Division (232 App. Div. 624, 250 N. Y. S. 392) affirming the conviction, defendant appeals by permission.

Judgment of the Appellate Division and of Court of General Sessions reversed, and new trial ordered.

Appeal from Supreme Court, Appellate Division, First department.

Caesar B. F. Barra and Ralph J. Barra, both of New York City, for appellant.

Thomas C. T. Crain, Dist. Atty., of New York City (Felix C. Benvenga and A. A. De Vito, both of New York City, of counsel), for the People.

CARDOZO, C. J.

Upon a plea of guilty, the defendant was convicted in the Court of General Sessions, county of New York, of attempted forgery in the third degree. Thereafter, before sentence was imposed, the district attorney filed an information, in accordance with Penal Law (Consol. Laws, c. 40) § 1943, accusing him of having been convictedof theree crimes which would have been felonies if committed in New York. He was accused of having been convicted of forgery under the name of E. F. Lathrop in Spokance county, Wash., of having been convicted of the crime of false pretenses under the name of E. E. Lewiston in Larimer county, Colo., and of having been convicted of forgery under the name of Earl Freeman Lathrop in Multnomah county, Oregon.

Arraigned in response to this information, and cautioned as to his rights, the defendant stood mute. A jury, which was thereupon impaneled to determine his identity, found him to be the same person previously convicted. He was sentenced as a fourth offender to imprisonment for life.

1. The defendant makes the claim that the evidence offered by the people to establish his identity is insufficient and incompetent.

The form of proof was the same as to each of the three felonies. The conviction of forgery in Oregon will illustrate them all. A police officer who had taken the defendant's fingerprints after his conviction in the Court of General Sessions in this state, produced the prints then made. There was then produced an exemplified copy of an indictment of Earl Freeman Lathrop for forgery, and of the conviction and sentence thereunder in a court of competent jurisdiction in Multnomah county, Or., with the warrant of commitment. Next there was received a certificate signed, or purporting to be signed, by the custodian of fingerprint records in the Oregon state penitentiary, certifying that the records in his custody show ‘a previous conviction of a person whose fingerprints are identical with those hereto attached,’ adding a description of the crime and the sentence. Two sets of fingerprints were attached: one a set of fingerprints displayed upon a sheet of paper with the printed heading of the bureau of criminal identification of the city of New York; the other a set of prints purporting to have been made at the state penitentiary in Oregon. On the production of this certificate, a member of the police force of the city of New York, who qualified as an expert, testified that the defendant's fingerprints taken in this state and the fingerprints attached to the certificate from Oregon were those of the same person.

Code Criminal Procedure, § 482-b, enacted in 1927 (Laws 1927, c. 356), provides as follows: ‘The report of a person charged with the custody of finger print records of persons convicted of crime, who shall certify in writing that the records in his custody show certain previous convictions of persons whose finger prints are identical with those of a defendant shall be presumptive evidence of the fact of such previous convictions of such defendant.’

The defendant argues, and we think correctly, that this statute does not apply to a certificate by a custodian of fingerprints in a state other than our own. No doubt a foreign custodian, annexing fingerprints to his certificate, would be competent to certify without the aid of any statute that they were prints or copies of prints kept upon his files in conformity with law, and to state, after comparison with the warrant of commitment, the name of the prisoner whose prints were so recorded. 3 Wigmore on Evidence, § 1677, p. 552. There would be a presumption in such circumstances that the prisoner fingerprinted was the prisoner committed; the presumption being merely an instance of the more general presumption of official regularity. 3 Wigmore on Evidence, § 1635, p. 401; § 1636, pp. 402, 403; Chesapeake & Delaware Canal Co. v. United States [C. C. A.] 240 F. 903, 907;Gaines v. Relf, 12 How. 472, 570, 13 L. Ed. 1071;Evanston v. Gunn, 99 U. S. 660, 25 L. Ed. 306;Commonwealth v. Slavski, 245 Mass. 405, 415, 140 N. E. 465, 29 A. L. R. 281, and cases there cited. People v. Bromwich, 200 N. Y. 385, 93 N. E. 933, is not a decision to the contrary. It rests upon the ground that the so-called rule of confrontation forbids the introduction of a certificate by a foreign officer that a record does not exist, a certificate wholly negative. Cf. 3 Wigmore on Evidence, § 1678, p. 560. The decision goes to an extreme limit of strictness, but it does not touch the admissibility of a certificate, affirmative in tenor, annexing copies of the records and attesting their correctness. The rule of confrontation which in this state is purely statutory (Civil Rights Law [Consol. Laws, c. 6], § 12; Code Cr. Proc. § 8) has never been deemed to require the exclusion of certificates or records made by a public officer in the course of his official duty. 3 Wigmore on Evidence, § 1398, p. 109; Commonwealth v. Slavski, 245 Mass. 405, 414, 415, 417, 140 N. E. 465, 29 A. L. R. 281;Heike v. United States (C. C. A.) 192 F. 83. If the certificate under the Code were merely one attesting the identity of records in the custody of the certifying officer, there would be little difficulty in applying the Code provisions to officers in other states. Upon proof that a person bearing the same name (5 Wigmore on Evidence, § 2529, p. 531; R. v. Levy, 8 Cox Cr. 73; Bayha v. Mumford, 58 Kan. 445, 49 P. 601;Ayers v. Ratshesky, 213 Mass. 589, 101 N. E. 78) had been convicted by a court of competent jurisdiction, a certificate, so framed, would be admissible in evidence, if properly authenticated. Identity of name is not always sufficient in a criminal prosecution to show identity of person (Ayers v. Ratshesky, supra), but it may be accepted as sufficient if fortified by circumstances, as, for example, by reasonable coincidence of time between the conviction and the prints, and by the duty of the officer, presumably discharged, to ascertain that the person fingerprinted is the one described in the commitment. The certificatebeing received, comparison of the prints annexed with the prints of the defendant on file in this state could then be made in open court by a witness qualified to testify. People v. Roach, 215 N. Y. 592, 604,109 N. E. 618, Ann. Cas. 1917A, 410.

The difficulty in this case has its origin chiefly in the fact that section 482-b of the Code of Criminal Procedure does not limit the custodian to a certificate as to the genuineness of the prints and a statement form the warrant of commitmentof the name of the prisoner whose prints have been recorded. He is to certify to much besides. He is to certify to his opinion that the prints which he attaches to his certificate are identical with those of the defendant, and the opinion is to be taken as presumptively correct. Plainly a custodian of foreign records is in no position to make the comparison or to venture the opinion which the statute has in view. The data necessary to the formation of a judgment are not in his possession. If the certificate sanctioned by the Code is confined to fingerprints taken in this state, the statute becomes workable. The domestic custodian has upon the files of his bureau the prints of defendants convicted in our courts, prints presumably taken in conformity with law. Cf. Code Cr. Proc. §§ 940-949, as amended by Laws of 1928, c. 875. He is thus in a position to make the comparison permitted by the statute and to express an opinion that the prints are the same. If the defendant challenges the opinion, the maker of the certificate is here, and can be produced and cross-examined. None of these tests is available in the case of a custodian absent from the state. Such a custodian when he expresses an opinion that two sets of prints are those of the defendant is making a comparison without knowledge of one of the two things which he is expected to compare. He knows something about the prints of a convict imprisoned in his state. He knows nothing about any others except that a group of prints, bearing a heading which indicates that they have been transmitted to him by the police department of New York, but not otherwise authenticated, are in his hands for comparison. He does not know when or where or by whom they were made or whether they are genuine or fictitious. How is it possible for him to certify in the language of the statute ‘that the records in his custody show certain previous convictions of persons whose fingerprints are identical with those of a defendant’?

The argument may be made that so much of the foreign certificate as expresses a comparison between the foreign prints and others may be rejected as surplusage, and the certificate accepted as identifying the foreign ones only. In that view, the effective comparison would be the one made upon the witness stand. At this point, however, another difficulty confronts us. The foreign certificate is not so authenticated as to be evidence of anything. All that is given us is a document signed by a person who describes himself as the custodian of the fingerprint records of persons convicted of crime. Neither the official character of the signer nor the genuineness of his seal and...